NCJ Number
192313
Journal
Punishment & Society Volume: 3 Issue: 4 Dated: October 2001 Pages: 485-500
Date Published
October 2001
Length
16 pages
Annotation
This article considers the attempt to justify punishment in terms of its ability to restore the breached rights of the crime victim.
Abstract
It examines the arguments put forward by Immanuel Kant and Georg Hegel and contends that their theories, having followed similar patterns linguistically and stylistically, albeit for different reasons, demonstrate how punishment restores rights. Kant relies on an inappropriate analogy, and Hegel resorts to an over-extended metaphor. Neither demonstrates how punishment "undoes" the wrong inherent in crime. Within the contemporary literature, there is a move from punishment as the restoration of right toward punishment as the reaffirmation of right. This article argues that the theories that follow this path fail to show why punishment is necessary to the reaffirmation of right. The way remains open for more convincing accounts of either how punishment restores a victim's right or why punishment is a necessary feature of the reaffirmation of a victim's right. In either case, Hegel's analysis of the wrong inherent in crime is a starting point. If punishment is to restore the breached right of the victim then it remains to be shown how coercion of the offender actually achieves this. If on the other hand, the function of punishment is to reaffirm right, it remains to be shown why coercion, even to the extent of coercing the offender into listening to the reaffirmation, is a necessary part of the process. If coercion can be justified in the name of reaffirming breached rights, it would remain to be shown that the particular types of coercion currently used in the penal system -- imprisonment, fine, community service, probation -- are relevant to the reaffirmation of victims' rights. 9 notes and 32 references